Madras High Court

J.Jeyakumar vs The Director Of School Education on 29 June, 2022

                                                                              W.P.No.27182 of 2014

                                      IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                         DATED : 29.06.2022

                                                              CORAM

                                     THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM

                                                     W.P.No.27182 of 2014

                     J.Jeyakumar                                                        ...Petitioner

                                                               ..Vs..

                     1.The Director of School Education,
                       DPI Campus,
                       Chennai-600 006.

                     2.The District Educational Officer,
                       Salem District,
                       Salem.

                     3.The Head Master,
                       Govt. Hr. Sec. School,
                       Kalpaganur School,
                       Salem District.
                                                                                    ... Respondents


                                  Writ Petition filed under Article 226 of the Constitution of India
                     praying to issue a Writ of Certiorarified Mandamus, to call for the
                     impugned order made in O.Mu.No.4519/AA5/2013 dated 03.07.2014
                     passed by the 2nd respondent and quash the same, consequently direct
                     the respondents to provide Compassionate appointment to the
                     petitioner.
                                        For Petitioner      : Ms.S.Vinodha
                                                              for Mr.T.Arul

                                        For Respondent      : Mr.S.Prabhakaran
                                                              Government Advocate

                     1/10
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                                                                           W.P.No.27182 of 2014


                                                           ORDER

The order of rejection rejecting the claim of the writ petitioner

for compassionate appointment is under challenge in the present writ

petition.

2. The writ petitioner states that his father Mr.Jeyaraman was

working as a night Watchman in Government High School, Kappaganur

Post, Attur Taluk, Salem District and died on 07.07.1996, while in

service. The mother of the writ petitioner pre-deceased his father. The

petitioner stated that his father got second marriage. After the death

of his father, the family was in penurious circumstances. However the

petitioner has not submitted the application immediately.

3. The learned counsel for the petitioner made a submission that

the petitioner submitted an application seeking appointment on

compassionate grounds on 08.09.1997. However, the impugned order

states that no such representation was received by the competent

authority during the relevant point of time. Therefore, this Court has

verified the nature of the representation dated 08.09.1997 filed by the

writ petitioner which is enclosed in Page 8 of the typed set of papers.

The representation was typed in a computer at Kappaganur Post, Attur

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Taluk, Salem District.

4. The learned Government Advocate appearing on behalf of the

respondents raised a doubt that during the relevant point of time the

said facility would not have been available in the said village, that

apart the headmaster signed the representation, wherein he entered

the date as 09.07.2013. Therefore a factual inference is to be drawn

with the representation which was submitted only on 09.07.2013

before the headmaster and a seal fixed in the representation cannot be

trusted upon. At the outset the petitioner has created a representation

only for the purpose of filing the present writ petition. The impugned

order states that no such representation was received in the year

1997.

5. That apart, the facts remains that the father of the writ

petitioner died in the year 1996 and the impugned order was passed in

the year 2014. Even presuming that the petitioner submitted an

application in the year 1997, the petitioner had not pursued the said

application for about 18 years. Only after 18 years from the date of

death of deceased employee, the petitioner preferred the present

petition. Therefore, the very submission of the writ petitioner that he

submitted an application in the year 1997 cannot be trusted upon.

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6. At the time of filing of the writ petition the petitioner was aged

about 33 years as per the affidavit, even in that case during the time

of 1997 the petitioner was a minor and therefore the said application

submitted cannot be taken into consideration for the purpose of

providing appointment on compassionate grounds.

7. The scheme of compassionate appointment was introduced to

mitigate the circumstances arising on account of sudden demise of the

Government Employee. Compassionate appointment is not a regular

appointment, nor an appointment under the constitutional scheme. It

is a concession granted to the Government employees on certain

exceptional circumstances. Thus, the compassionate appointment can

never be claimed as a matter of right and only if a person is entitled

under the terms and conditions, then alone the scheme can be

extended, but not otherwise. Equal opportunity in public employment

is a constitutional mandate. All appointments are to be made in

accordance with the rules and by providing equal opportunity to

participate in the process of selection.

8. As far as the compassionate appointments are concerned, no

selection is conducted, no suitability or eligibility is tested, but persons

are appointed merely based on death of an employee. Therefore,

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compassionate appointment is to be restricted in the interest of the

efficient public administration. No doubt, the Government has also

restricted the compassionate appointments and it is to be extended

only to the deserving family and more so, after a lapse of many years.

Providing compassionate appointment after a lapse of many years

would not only defeat the purpose and object of the scheme, but also

the penurious circumstances arose on account of the sudden death

became vanished. Thus, the lapse of time is also a ground to reject the

claim for compassionate appointment. Number of judgments are

delivered by this Court and the Government has also issued revised

instructions for providing compassionate appointment in G.O.(Ms)

No.18, Labour and Employment (Q1) Department, dated 23.01.2020.

9. Even recently, the Hon'ble Supreme Court in the case of

State of Uttar Pradesh and Others vs. Premlata [(2022) 1 SCC

30], has made observations in respect of implementation of the

scheme of compassionate appointment and the relevant portion of the

observations are extracted hereunder:

“8. While considering the issue involved in the present appeal, the law laid down by this Court on compassionate ground on the death of the deceased employee are required to be referred to and considered. In the recent decision, this Court in State

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of Karnataka vs. V.Somayashree [(2021) 12 SCC 20], had occasion to consider the principle governing the grant of appointment on compassionate ground. After referring to the decision of this Court in N.C.Santhosh vs. State of Karnataka [(2020) 7 SCC 617], this Court has summarized the principle governing the grant of appointment on compassionate ground as under:

10.1. That the compassionate appointment is an exception to the general rule;

10.2. That no aspirant has a right to compassionate appointment;

10.3. The appointment to any public post in the service of the State has to be made on the basis of the principle in accordance with Articles 14 and 16 of the Constitution of India;

10.4. Appointment on compassionate ground can be made only on fulfilling the norms laid down by the State’s policy and/or satisfaction of the eligibility criteria as per the policy;

10.5. The norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate appointment.

9. As per the law laid down by this Court in a catena of decisions on the appointment on compassionate ground, for all the government vacancies equal opportunity should be provided to all aspirants as mandated under Articles 14 and 16 of the Constitution. However, appointment on compassionate ground offered to a dependent of a deceased employee is an exception to the said norms.

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The compassionate ground is a concession and not a right.

9.1. In the case of H.P. v. Shashi Kumar [(2019) 3 SCC 653], this Court in paras 21 and 26 had an occasion to consider the object and purpose of appointment on compassionate ground and considered decision of this Court in Govind Prakash Verma vs. LIC [(2005) 10 SCC 289], it is observed and held as under:

“21. The decision in Govind Prakash Verma, has been considered subsequently in several decisions. But, before we advert to those decisions, it is necessary to note that the nature of compassionate appointment had been considered by this Court in Umesh Kumar Nagpal v. State of Haryana [(1994) 4 SCC 138]. The principles which have been laid down in Umesh Kumar Nagpal have been subsequently followed in a consistent line of precedents in this Court. These principles are encapsulated in the following extract:

“2. … As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of

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livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved viz. relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the

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services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned.” “26. The judgment of a Bench of two Judges in Mumtaz Yunus Mulani vs. State of Maharashtra [Mumtaz Yunus Mulani v. State of Maharashtra, (2008) 11 SCC 384 : (2008) 2 SCC (L&S) 1077] has adopted the principle that appointment on compassionate grounds is not a source of recruitment, but a means to enable the family of the deceased to get over a sudden financial crisis. The financial position of the family would need to be evaluated on the basis of the provisions contained in the scheme. The decision in Govind Prakash Verma [Govind Prakash Verma v. LIC, (2005) 10 SCC 289 : 2005 SCC (L&S) 590] has been duly considered, but the Court observed that it did not appear that the earlier binding precedents of this Court have been taken note of in that case.”

10. In any angle, the case of the writ petitioner is not a fit case

for granting the relief as there was an enormous delay and further the

petitioner submitted an application in the year 1997 which cannot be

trusted upon and the subsequent applications submitted belatedly after

a lapse of 3 years from the date of death of the deceased employee

cannot be considered with reference to terms and conditions of the

scheme of compassionate appointment.

S.M.SUBRAMANIAM., J

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mrm/psa

11. Accordingly, the writ petition stands dismissed. No costs.

29.06.2022 mrm/psa